Joint authorship: It All Comes Down to Intention

by John Aquino on 02/06/12

 

Joint authorship is an interesting and relatively new aspect of the U.S. copyright law.

Perhaps the perfect example of joint authorship is the authorship of a song. Under the current copyright law, minus an agreement to the contrary, the composer and the lyricist are joint authors of the entire song, not just one being the author of the music and the other the author of the lyrics, because the song was, in most cases, intended to be jointly created.

It wasn’t always this way. The U.S. Copyright Act of 1909, which was the copyright law for most of the 20^th century, did not define or even mention joint authors or joint copyright. It only referred to “the author” or “the proprietor.” As a result, when you look at old sheet music of a song by Rodgers and Hammerstein, for example, the music was copyrighted by Rodgers and the lyrics by Hammerstein,that is until they formed Williamson Music and assigned the copyrights to it.

This concept that the music and the lyrics were distinct had ramifications beyond copyright. When the 1931 musical comedy Of Thee I Sing won the Pulitzer Prize for drama, the prize was awarded to the lyricist Ira Gershwin and the librettists George S. Kaufman and Morris Ryskind and not to the composer George Gershwin. No one denied that his music was an inseparable and essential part of the show. But this was the Pulitzer Prize for drama, and there was and is a separate Pulitzer Prize for music, which Gershwin did not win for Of Thee I Sing. People just thought the music and lyrics were separate items. This separation had vanished by the time the 1949 musical South Pacific when composer Richard Rodgers’ name was included on the award.

I remember hearing the lyricist Sammy Cahn describe how during the writing of the songs for the 1947 musical High Button Shoes he and composer Jules Styne wrote a song for the heroine that went something like,

I’m betwixt, I’m between,

Don’t really know which way to lean,

Don’t know why, don’t know how,

You see, I really can’t make my mind up.

The song was cut from the show when it was on the road, and it became one of Styne’s “trunk songs”—songs that either weren’t used at all or were cut and that he would later either reuse or mine for ideas.

Cahn recalled that 12 years later he was in the audience for the musical Gypsy, with music by Styne and lyrics by Stephen Sondheim, and he heard Ethel Merman sing to the same melody that Styne had written for Cahn’s lyrics in High Button Shoes,

You’ll be swell, you’ll be great,

Going to have the whole world on a plate,

Starting here, starting now,

Honey, everything’s coming up roses.

Cahn had written the original lyrics for the 1947 song first and contributed to the song’s rhythm. His lyrics inspired the melody, and he most likely worked line by line and bar by bar with Styne on the original song. And yet he had no ownership in the "Everything's Coming Up Roses" because the music and lyrics were copyrighted separately and considered to be the separate property of the composer and lyricist, respectively. All Cahn could do was grin and take it.

In the Copyright Act of 1976, that all changed. The Act defined joint authorship as a work prepared by two or more individuals with the intention that their separate contributions be merged into a single work. The key word is “intention.”

So, subject to an agreement to the contrary, joint authors own the work jointly and equally unless they agree on some other division of ownership. Each joint author, therefore, has the right to exercise any or all of the exclusive rights inherent in the joint work. For example, each author can grant third parties permission to use the work on a nonexclusive basis without the consent of the other joint author (although he or she has a duty to account to the other joint author for any profits received from licensing the joint work) or can transfer his or her entire ownership interest to another person without the other joint authors' consent. Each author may also update the work for his or her own purposes.

I said that the key word in the definition of joint authorship is “intention.” The authors have to intend that the work be considered a single work with joint ownership. A song, as I said earlier, is perhaps the perfect example of joint authorship. The song does not exist without both the music and the lyrics. It is a single work of joint authorship. To be sure, these things are usually handled in contracts that specify joint authorship. But even without a contract, joint authorship for a song is clear because the intention required for joint authorship is inherent in the songwriting process.

But joint authorship doesn’t just apply to songs. The work can be scholarly articles, a celebrity autobiography that the celebrity writes with a professional writer, fiction, a sculpture, a painting, anything that is jointly created.

In some instances, however, a contract is absolutely necessary to establish joint authorship. There was the situation regarding the musical Rent. Jonathan Larson wrote the music, lyrics, and book. He was also very ill. Lynn Thomson was the dramaturg for the show, and her job was contractually specified as helping the author of the show. Larson died the day before Rent opened. When it became a big hit, Thomas asserted that she had contributed in the course of her work with Larson 16 percent of the material of the show. She said she had never assigned, licensed, or otherwise transferred her rights. She asked that a federal district court declare her a co-author of Rent and grant her 16 percent of the author's share of the royalties. (Larson, of course, was not around to provide his account of what had happened.)

The district court held and on June 19, 1998 the United States Court of Appeals for the Second Circuit affirmed that there was no evidence  that Larson ever intended that Thomson be co-author of the work. She was hired as the dramaturg. If she had contributed lines and lyrics, the court held, it was part of the collaborative give and take that is part of the theatre.

Even though she lost the case, Thompson threatened to litigate the ownership of each line of dialogue and each line of a lyric that she claimed to have written. Rather than go through another court case and potentially establish the precedent that someone could own a line of dialogue or the line of a lyric, Larson’s estate settled out of court, with Thomson receiving an undisclosed sum but far less that the equivalent of 16 percent of the royalties.

A line of dialogue or lyrics has not been considered a work of authorship, which is the major requirement for whether a work can be copyrighted. And the idea that an individual could own a line of dialogue would surely chill the collaborative process of the theatre and of film. In 1960, the television cartoon show The Flintstones debuted. In a moment of enthusiasm for the character of Fred Flinstone, Alan Reed, the actor who was giving the voice to Fred, blurted out in an ad-lib “Yabba-Dabba-Doo.” The producers were so taken with the line that Reed was encouraged to use it frequently, it became a catch-phrase for the show, and it was even built into the lyrics of the title song,

When you're with the Flintstones
You'll have a yabba dabba doo time.
A dabba doo time.
You'll have a gay old time.

The famous songwriter Hoagy Carmichael (“Stardust,” “The Nearness of You,” In the Cool, Cool, Cool of the Evening”) lent his voice to an episode of the Flintstones and even wrote a song for the episode titled “Yabba Dabba Do.”

There’s no record of Reed having fought for ownership of the line. He may have been subject to a “for-hire” situation for the whole work process under his employment by Hanna-Barbera. But more likely, Reed just viewed it as something actors did as part of their professional work and not an act of authorship.

Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.